Viewpoint: Sentencing Options: Why restrict judges?

Wisconsin’s criminal justice system and Wisconsin residents would be better served if judges could choose between indeterminate and determinate sentences, depending on the seriousness of the offense and the offender’s history and likely ability to be rehabilitated.

Most lawyers and many nonlawyers know about the part of the criminal justice system involving investigations, arrests, arguments about evidence, examinations of witnesses, and other activities that take place in courtrooms. But, even though Wisconsin spends more than $1 billion annually on its corrections system, many lawyers and nonlawyers know little about what happens to sentenced prisoners after they leave the courtroom. This article describes the differences between indeterminate sentencing (parolable) and determinate sentencing (court controls exact length of confinement), each of which has strengths but also significant limitations. The authors conclude that, instead of restricting judges exclusively to only one or the other type of sentence, both the criminal justice system and public safety would benefit if judges could choose between the two options.

Programming and Parole

For decades, Wisconsin and nearly all other states applied the concepts of programming and parole to their corrections systems. Rehabilitation and reintegration of offenders into society were the focus.

Under the parole system, all offenders were guaranteed the opportunity to be considered for parole after serving 25 percent of their sentences. Except for individuals who were serving a life sentence, all offenders were ensured of being released to the community after serving two-thirds of their sentences if they maintained good behavior while in prison. For example, if a person entered prison to serve a 12-year sentence for an assaultive offense, the Department of Corrections (DOC) would calculate the initial parole eligibility date as the third anniversary of incarceration and the mandatory release date at eight years. Even if the Parole Commission did not grant parole right away, the commission would see the offender each year for review to monitor the offender’s program progress and adjustment.

Treatment and program needs were assessed upon admission to prison and offenders generally promptly began their programs, because the Parole Commission often granted parole as soon as the programs had been completed and the offenders had demonstrated good behavior while in prison and had fully accepted responsibility for their crimes. The programs would include job-skills training, education, drug/alcohol counseling, changing criminal thinking patterns, sex-offender treatment, and mental health support. Any time not served in prison would be served in the community under the supervision of a DOC agent, and significant violations could lead to parole revocation and a return to prison to serve some or all of the unserved time. (For example, an offender with a 12-year sentence released to parole after serving five years would receive supervision in the community for seven years. If parole was revoked during the seven years, the offender would be returned to prison to serve up to seven of the seven remaining years.)

In the parolable system, the DOC determined the vast majority of offenders who entered prison should be enrolled into educational and treatment programs at the front end of their sentences, with the punishment aspect being the restriction of liberty during the time the offenders were earning their way to a parole grant. (These determinations could be reversed if the DOC observed ongoing disruptive behavior that resulted in an inmate’s eviction from the program and placement into segregation cells, which moved back the mandatory release date.) Even in those cases when the prison system and the Parole Commission might intend an offender never get a parole grant, programs still were universally offered at the front end. The courts, prison administrators, and the parole commission worked on the assumption that most offenders who completed programs would be ready to return to the community with supervision.

The disadvantage of the parole system was that, until the mid-1990s when some statutory changes were made, even the very worst of offenders had at least a theoretical opportunity for parole.Because even offenders who were convicted of the most serious crimes and displayed not a shred of remorse were guaranteed an opportunity to be interviewed by a parole commissioner, the system was open to ridicule by prosecutors, judges, the media,and the public. Although there was no possibility that such offenders would actually ever be paroled, there was no formal way for the Parole Commission to ensure and communicate this result.

The parolable approach actually worked well for most offenders, but for career criminals or those for whom punishment and long-term incapacitation were the only credible objectives of sentencing, the very possibility of parole seemed to undermine the judge from the very moment of sentencing.

Truth-in-Sentencing

In the 1990s, momentum in Wisconsin developed for increasingly long and punitive sentences. Wisconsin now has one of the highest rates of combined jail/prison incarceration of the 28 states in the Midwest and Northeast. Many people assumed that only drastic measures could adequately respond to the combined threats to public safety of drugs and violent crime. Along with minimum mandatory sentencing, a demand arose for “certainty” in sentencing: that offenders would serve every day of the sentence ordered by the court. Under truth-in-sentencing (TIS) laws, there would be no parole. Instead, the judge would decide the exact length of confinement and, after sentencing, neither the offender nor the prison system could do anything to shorten that confinement time by even a day.

The advantage of TIS is that it is very efficient for that group of career or incorrigible offenders about whom, at the date of sentencing, information is available as to how the offender might respond to prison and how long the offender should be confined. TIS is especially desirablewhen the primary goal at sentencing is punishment or lengthy incapacitation(with incarceration preventing future crimes by that person in the community) and there is certainty that no amount of treatment or program attendance would ever justify an earlier release date. In short, it is well-designed for the most serious crimes and criminals.Determinate sentencing for the most serious offenses and offenders gives the public a sense of certainty.

The disadvantage of TIS is that it does not work well for an offender who genuinely might be more of a “work in progress” at the date of sentencing. Such an offender might, for example, be in his or her late teens or early 20s and have made truly awful choices, become involved with the wrong peers, and caused serious injury or damage. Nevertheless, one cannot predict with certainty how the individual will develop over the next several years. Based solely on the calculated exact date of release, the prison system schedules nearly all treatment programming to occur near the end of the sentence. Program entry is delayed so that program completion occurs near the time of release to the community and the offender has fresh memory of the program concepts. Before then, the stay in prison is often dead time. The primary problem with TIS overall is that it has caused an explosion in the prison population and related costs and a dramatic drop in the percentage of offenders who actually receive critical treatment programs before release. To pay for housing and monitoring the state’s 23,000 inmates, program funding per inmate has been slashed since the pre-TIS years. Inmates today are both likely to be held in prison longer and far less likely to receive designated treatment programs before leaving prison than in pre-TIS years.

The first TIS law took effect on Dec. 31, 1999. In the following legislative sessions, legislators began proposing mechanisms to allow for shortening confinement time. The first attempt (TIS-2 took effect in early 2003) placed all authority and responsibility for any early release (“sentence adjustment”) with the court system without giving the courts any staff resources or necessary information about offenders’ experience in prison. Judges were being asked to make parole-like sentence-adjustment decisions without having access to offenders’ full DOC prison files. Unsurprisingly, many judges chose not to decide, and very few sentence-adjustment orders were issued.

The next attempt (TIS-3, passed in 2009) was an even more complicated system. Confusing restrictions that required complex computations were enacted, and the decision authority was transferred from the courts to the Wisconsin Earned Release Review Commission (ERRC). This system, which took effect on Oct. 1, 2009, is just beginning to operate. But instead of making the system clearer and easier for offenders, courts, attorneys, and the public to understand, TIS-3 is almost impossible for even specialists to understand. There still is no opportunity for a court, at sentencing, to clearly state whether an offender should be placed on the earn-your-way-out track or be basically kept off any track that would allow anyone to release the offender even a day early.

In Wisconsin, every year thousands of offenders are admitted to prison who have not committed the most serious offenses and who are not at high risk of reoffending when released. Neither the public nor legislators tend to think about how the TIS prison system operates for this group of offenders. Instead, the public discussion tends to focus on those comparatively few offenders who have committed very violent crimes, have been repeatedly incarcerated, or possess characteristics suggesting they will reoffend as soon as they return to the community. Wisconsin’s sentencing system should not be one-size-fits-all but instead should recognize these differences and place a premium on effective use of scarce public-safety resources.

Providing Choice in Sentencing Options

Providing a judge with the choice of the two sentencing options – TIS and parole – would be a major leap forward. By using determinate sentences in very serious matters the judge reassures the public about its safety and makes it clear that the offender’s current and past behavior have so crossed the line that the offender will serve the entire sentence. By using a parolable sentence, the judge signals that both the offender and the correctional system should concentrate on methods the offender can use to earn an earlier release.

Providing the judge with sentencing options allows courts and the corrections system to work more efficiently. For non-TIS offenders, after the judge imposes a sentence, the question of how best to plan for programming leading to release moves to the DOC and the ERRC. “Sufficient punishment” would be assumed as having been met when the offender reaches parole eligibility. If the court wants additional punishment, a TIS sentence would be used. When courts had no method of differentiating between the two types of situations, parole commissioners assumed that, for a growing list of offenses, both they and the governor would be in peril if they erred on the side of release. This inability to clearly communicate led to a breakdown in parole functioning. Under the proposed dual-option sentencing system, the judge’s choice of sentencing option would clearly communicate to all subsequent actors the court’s intended primary goal of incarceration, and the ERRC would no longer need to question whether it really has the authority and responsibility delegated to it.

Under a dual-choice system, for TIS offenders, the court would retain total responsibility both at the time of sentencing and until the last day of ordered confinement is finished. Neither the DOC nor the ERRC would be distracted by wondering what programs might change the length of confinement and therefore there would be considerable clarity within the DOC regarding when to schedule any programs. If the state or the defense were not satisfied with a judge’s choice of sentence type, either side could appeal immediately so the decision would become final in a timely manner. If a judge were to impose a parolable sentence, the court and prosecutor would have no further role in making the release decision. If a judge were to impose a TIS sentence the court would maintain a role in the release decision.

The dual-choice sentencing system would provide appropriate reassurance to the public that true predators will not be released early. It also would provide the possibility of reducing prison costs for some offenders who could benefit from early introduction to prison-based treatment programs and could be adequately supervised in the community.

TIS with specific dates of confinement set by the judge should not be eliminated or restricted. As described above, it is essential to have this sentencing option for certain types of offenders. TIS and parole approaches each have their distinct advantages and disadvantages. Instead of just having entirely one or the other, Wisconsin should be a leader and provide courts with the freedom to select which of these two options will work best for each individual offender. Prosecutors and defense attorneys will also be involved at the time of plea negotiations and sentencing hearings and be able to argue for which approach will most likely deliver the best outcome.

Kenneth M. Streit, Northwestern 1974, is a professor of law at the U.W. Law School Frank J. Remington Center.